§94.1 Basis

The chapter implements the requirements for training and evaluating the competency of nurse aides employed in nursing facilities that participate in Medicaid, Medicare, or both, and for maintaining a registry of nurse aides, required by §1819(b)(5) and §1919(b)(5) of the Social Security Act; the Code of Federal Regulations, Title 42, §§483.150-483.154; and Texas Health and Safety Code, Chapter 250.

§94.2 Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

Nurse aide — An individual who provides nursing or nursing-related services to residents in a facility under the supervision of a licensed nurse and who has successfully completed a NATCEP or has been determined competent by waiver or reciprocity. This term does not include an individual who is a licensed health professional or a registered dietitian or who volunteers services without monetary compensation.

(21)

Nurse aide registry (NAR) — A state listing of nurse aides that indicates if a nurse aide has active status, revoked status, or is unemployable based on a finding of having committed an act of abuse, neglect or misappropriation of resident property.

(22)

Nurse aide training and competency evaluation program (NATCEP) — A program approved by DADS to train and evaluate an individual's ability to work as a nurse aide in a facility.

(23)

Nurse aide training and competency evaluation program (NATCEP) application — A DADS form used to request DADS initial approval to offer a NATCEP, to renew approval to offer a NATCEP, or to request DADS approval of changed information in an approved NATCEP application.

(24)

Nursing services — Services provided by nursing personnel that include, but are not limited to:

(A)

promotion and maintenance of health;

(B)

prevention of illness and disability;

(C)

management of health care during acute and chronic phases of illness;

(D)

guidance and counseling of individuals and families; and

(E)

referral to other health care providers and community resources when appropriate.

(25)

Performance record — An evaluation of a trainee's performance of major duties and skills taught by a NATCEP.

(26)

Person — A corporation, organization, partnership, association, natural person, or any other legal entity that can function legally.

(27)

Program director — An individual who is approved by DADS and meets the requirements in §94.5(a) of this chapter (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(28)

Program instructor — An individual who is approved by DADS to conduct the training in a NATCEP and who meets the requirements in §94.5(b) of this chapter.

(29)

Registered nurse (RN) — An individual licensed by the Texas Board of Nursing to practice professional nursing.

(30)

Resident — An individual accepted for care or residing in a facility.

(31)

Skills examiner — An individual who is approved by DADS and meets the requirements in 94.5(d) of this chapter.

(32)

Trainee — An individual who is enrolled in and attending, but has not completed, a NATCEP.

To train nurse aides, a facility must apply for and obtain approval from DADS to offer a NATCEP or the facility must contract with another entity offering a NATCEP.

(b)

A person that wants to offer a NATCEP must file a complete NATCEP application with DADS.

(c)

A person applying to offer a NATCEP must submit a separate NATCEP application for each classroom location.

(d)

A NATCEP application must identify one or more facilities that the NATCEP uses as a clinical site.

(e)

DADS does not approve a NATCEP offered by or in a facility if, within the previous two years, the facility:

(1)

has operated under a waiver concerning the services of a registered nurse under §1819(b)(4)(C)(ii)(II) or §1919(b)(4)(C)(i)-(ii) of the Act;

(2)

has been subjected to an extended or partially extended survey under §1819(g)(2)(B)(i) or §1919(g)(2)(B)(i) of the Act;

(3)

has been assessed a civil money penalty of not less than $5,000 as described in §1819(h)(2)(B)(ii) or §1919(h)(2)(A)(ii) of the Act;

(4)

has been subjected to denial of payment under Title XVIII or Title XIX of the Act;

(5)

has operated under state-appointed temporary management to oversee the operation of the facility under §1819(h) or §1919(h) of the Act;

(6)

had its participation agreement terminated under §1819(h)(4) or §1919(h)(1)(B)(i) of the Act; or

(7)

pursuant to state action, closed or had its residents transferred under §1919(h)(2) of the Act.

(f)

A facility that is prohibited from offering a NATCEP under subsection (e) of this section must contract with a person who has not been employed by the facility or by the facility’s owner to offer NATCEP in accordance with §1819(f)(2) and §1919(f)(2) of the Act if:

(1)

the NATCEP is offered to employees of the facility that is prohibited from training nurse aides under subsection (e) of this section;

(2)

the NATCEP is offered in, but not by, the prohibited facility;

(3)

there is no other NATCEP offered within a reasonable distance from the facility; and

(4)

an adequate environment exists for operating a NATCEP in the facility.

(g)

A person who wants to contract with a facility in accordance with subsection (f) of this section must submit a completed application to DADS in accordance with §94.4 of this chapter (relating to Filing and Processing an Application for a Nurse Aide Training and Competency Evaluation Program (NATCEP)) and include the name of the prohibited facility in the application. DADS may withdraw the application within two years of approving it if DADS determines that the facility is no longer prohibited from offering a NATCEP.

(h)

Before September 1, 2013, a NATCEP must provide at least 75 hours of training to a trainee. The 75 hours must include:

(1)

51 hours of classroom training; and

(2)

24 hours of clinical training, which includes care of residents and has at least one program instructor for every 10 trainees.

(i)

Effective September 1, 2013, a NATCEP must provide at least 100 hours of training to a trainee. The 100 hours must include:

(1)

60 hours of classroom training; and

(2)

40 hours of clinical training, which includes care of residents and has at least one program instructor for every 10 trainees.

(j)

A NATCEP must teach the curriculum established by DADS and described in the Code of Federal Regulations, Title 42, §483.152. The NATCEP must include at least 16 introductory hours of classroom training in the following areas before a trainee has any direct contact with a resident:

(1)

communication and interpersonal skills;

(2)

infection control;

(3)

safety and emergency procedures, including the Heimlich maneuver;

(4)

promoting a resident's independence;

(5)

respecting a resident's rights;

(6)

basic nursing skills, including:

(A)

taking and recording vital signs;

(B)

measuring and recording height and weight;

(C)

caring for a resident's environment;

(D)

recognizing abnormal changes in body functioning and the importance of reporting such changes to a supervisor; and

(E)

caring for a resident when death is imminent;

(7)

personal care skills, including:

(A)

bathing;

(B)

grooming, including mouth care;

(C)

dressing;

(D)

toileting;

(E)

assisting with eating and hydration;

(F)

proper feeding techniques;

(G)

skin care; and

(H)

transfers, positioning, and turning;

(8)

mental health and social service needs, including:

(A)

modifying the aide's behavior in response to a resident's behavior;

(B)

awareness of developmental tasks associated with the aging process;

(C)

how to respond to a resident's behavior;

(D)

allowing a resident to make personal choices, providing and reinforcing other behavior consistent with the resident's dignity; and

(E)

using a resident's family as a source of emotional support;

(9)

care of cognitively impaired residents, including:

(A)

techniques for addressing the unique needs and behaviors of a resident with a dementia disorder including Alzheimer's disease;

(B)

communicating with a cognitively impaired resident;

(C)

understanding the behavior of a cognitively impaired resident;

(D)

appropriate responses to the behavior of a cognitively impaired resident; and

(E)

methods of reducing the effects of cognitive impairments;

(10)

basic restorative services, including:

(A)

training a resident in self care according to the resident's abilities;

(B)

use of assistive devices in transferring, ambulation, eating, and dressing;

(C)

maintenance of range of motion;

(D)

proper turning and positioning in bed and chair;

(E)

bowel and bladder training; and

(F)

care and use of prosthetic and orthotic devices; and

(11)

a resident's rights, including:

(A)

providing privacy and maintenance of confidentiality;

(B)

promoting the resident's right to make personal choices to accommodate their needs;

(C)

giving assistance in resolving grievances and disputes;

(D)

providing needed assistance in getting to and participating in resident, family, group, and other activities;

(E)

maintaining care and security of the resident's personal possessions;

(F)

promoting the resident's right to be free from abuse, mistreatment, and neglect and the need to report any instances of such treatment to appropriate facility staff; and

(G)

avoiding the need for restraints in accordance with current professional standards.

(k)

A NATCEP must have a program director and a program instructor when the NATCEP applies for initial approval by DADS in accordance with §94.7 of this chapter (relating to Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)) and to maintain DADS approval. The program director and program instructor must meet the requirements of §94.5(a) and (b) of this chapter (relating to Program Director, Program Instructor, Supplemental Trainers, and Skills Examiner Requirements).

(l)

A NATCEP must verify that a trainee:

(1)

is not listed on the NAR in revoked status;

(2)

is not listed as unemployable on the EMR;

(3)

has not been convicted of a criminal offense listed in Texas Health and Safety Code (THSC), §250.006(a), or convicted of a criminal offense listed in THSC, §250.006(b) within the five years immediately before participating in the NATCEP.

(m)

A NATCEP must ensure that a trainee:

(1)

completes the first 16 introductory hours of training (Section I of the curriculum) before having any direct contact with a resident;

(2)

only performs services for which the trainee has been trained and has been found to be proficient by a program instructor;

(3)

is under the direct supervision of a licensed nurse when performing skills as part of a NATCEP until the trainee has been found competent by the program instructor to perform that skill;

(4)

is under the general supervision of a licensed nurse when providing services to a resident after a trainee has been found competent by the program instructor;

(5)

is clearly identified as a trainee during the clinical training portion of the NATCEP.

(n)

A NATCEP must submit a NATCEP application to DADS if the information in an approved NATCEP application changes. A NATCEP may not continue training or start new training until DADS approves the change. DADS conducts a review of the NATCEP information if DADS determines the changes are substantive.

(o)

A NATCEP must use a DADS performance record to document major duties or skills taught, trainee performance of a duty or skill, satisfactory or unsatisfactory performance, and the name of the instructor supervising the performance. At the completion of the NATCEP, the trainee and the employer, if applicable, will receive a copy of the performance record.

(p)

A NATCEP must maintain records and make them available to DADS or its designees at any reasonable time. The records must include:

(1)

dates and times of all classroom and clinical training;

(2)

full name and social security number of a trainee;

(3)

attendance record of a trainee;

(4)

final course grade for the training portion of the NATCEP that indicates pass or fail for a trainee; and

(5)

daily sign-in records for classroom and clinical training.

(q)

A facility must not charge a nurse aide for any portion of the NATCEP, including any fees for textbooks or other required course materials, if the nurse aide is employed by or has received an offer of employment from a facility on the date the nurse aide begins a NATCEP.

(r)

DADS reimburses a nurse aide for a portion of the costs incurred by the nurse aide to complete a NATCEP if the nurse aide is employed by or has received an offer of employment from a facility within 12 months after completing the NATCEP.

(s)

DADS must approve a NATCEP before the NATCEP solicits or enrolls trainees.

(t)

DADS approval of a NATCEP only applies to the required curriculum and hours. DADS does not approve additional content or hours.

(u)

A new employee or trainee orientation given by a facility to a nurse aide employed by the facility does not constitute a part of a NATCEP.

(v)

A NATCEP that provides training to renew a nurse aide’s listing on the NAR must include training in geriatrics and the care of residents with a dementia disorder, including Alzheimer’s disease.

§94.4 Filing and Processing an Application for a Nurse Aide Training and Competency Evaluation Program (NATCEP)

(a)

A person that wants to offer a NATCEP must complete a NATCEP application on forms prescribed by DADS and submit the application to DADS.

(b)

DADS determines whether to approve or deny the NATCEP application.

(c)

Within 90 days after DADS receives a complete NATCEP application, DADS notifies a NATCEP applicant of approval or proposed denial of a NATCEP application, or notifies the applicant of a deficiency or error in accordance with subsection (d) of this section. If DADS proposes to deny the application due to the applicant’s noncompliance with the requirements of the Act or this chapter, DADS provides the reason for the denial in the notice.

(d)

If DADS finds a deficiency or error in a NATCEP application, DADS notifies the applicant in writing of the deficiency or error and gives the applicant an opportunity to correct the deficiency or error. The applicant must submit the additional or corrected information to DADS, in writing, within 10 days after the applicant receives notice of the deficiency or error.

(e)

If DADS proposes to deny a NATCEP application based on the NATCEP’s failure to comply with §94.3 of this chapter (relating to Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements), or §94.7 of this chapter (relating to Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)), the applicant may request a hearing to challenge the denial. A hearing is governed by 1 Texas Administrative Code (TAC) Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), and Chapter 91 (relating to Hearings Under the Administrative Procedure Act). 1 TAC §357.484 (relating to Request for a Hearing) requires a hearing to be requested in writing within 15 days after the date the notice is received by the applicant. If an applicant does not make a timely request for a hearing, the applicant waives a hearing and DADS may deny the NATCEP application.

Program director. A program director must directly perform training or have general supervision of the program instructor and supplemental trainers. A NATCEP must have a program director when the NATCEP applies for initial approval by DADS in accordance with §94.7 of this chapter (relating to Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)) and to maintain DADS approval.

(1)

The program director must:

(A)

be an RN in the state of Texas;

(B)

have a minimum of two years of nursing experience, with at least one year of providing long term care services in a facility; and

(C)

have completed a course that focused on teaching adult students or have experience in teaching adult students or supervising nurse aides.

(2)

In a facility-based NATCEP, the director of nursing (DON) for the facility may be approved as the program director, but must not conduct the training.

(3)

A program director may supervise more than one NATCEP.

(4)

A program director's responsibilities include, but are not limited to:

(A)

directing the NATCEP in compliance with the Act and this chapter;

(B)

directly performing training or having general supervision of the program instructor and supplemental trainers;

(C)

ensuring that NATCEP records are maintained;

(D)

determining if trainees have passed the training portion of the NATCEP;

(E)

signing a competency evaluation application completed by a trainee who has passed the training portion of the NATCEP; and

(F)

signing a certificate of completion or a letter on letterhead stationery of the NATCEP or the facility, stating that the trainee has passed the training portion of the NATCEP if the trainee does not take the competency evaluation with the same NATCEP. The certificate or letter must include the date training was completed, the total training hours completed, and the official NATCEP name and number on file with DADS.

(5)

A NATCEP must submit a NATCEP application for DADS approval if the program director of the NATCEP changes.

(b)

Program instructor. A NATCEP must have at least one qualified program instructor when the NATCEP applies for initial approval by DADS in accordance with §94.7 of this chapter and when training occurs.

(1)

A program instructor must:

(A)

be a licensed nurse;

(B)

have a minimum of one year of nursing experience in a facility;

(C)

have completed a course that focused on teaching adult students or have experience teaching adult students or supervising nurse aides; and

(D)

work under the general supervision of the program director or be the program director.

(2)

The program instructor is responsible for conducting the classroom and clinical training of the NATCEP under the general supervision of the program director.

(3)

An applicant for a NATCEP must certify on the NATCEP application that all program instructors meet the requirements in paragraph (1)(A)-(D) of this subsection.

(4)

A NATCEP must submit a NATCEP application for DADS approval if a program instructor of the NATCEP changes.

(c)

Supplemental trainers. Supplemental trainers may supplement the training provided by the program instructor in a NATCEP.

(1)

A supplemental trainer must be a licensed health professional acting within the scope of the professional’s practice and have at least one year of experience in the field of instruction.

(2)

The program director must select and supervise each supplemental trainer.

(3)

A supplemental trainer must not act in the capacity of the program instructor without DADS approval. To request approval, a NATCEP must submit a NATCEP application to DADS.

(d)

Skills examiner. A skills examiner must administer a competency evaluation.

(1)

DADS or its designee approves an individual as a skills examiner if the individual:

(A)

is an RN;

(B)

has a minimum of one year of professional experience in providing care for the elderly or chronically ill of any age; and

(C)

has completed a skills training seminar conducted by DADS or its designee.

(2)

A skills examiner must:

(A)

adhere to DADS standards for each skill examined;

(B)

conduct an competency evaluation in an objective manner according to the criteria established by DADS;

(C)

validate competency evaluation results on forms prescribed by DADS;

(D)

submit prescribed forms and reports to DADS or its designee; and

(E)

not administer a competency evaluation to an individual who participates in a NATCEP for which the skills examiner was the program director, the program instructor, or a supplemental trainer.

§94.6 Competency Evaluation Requirements

(a)

A skills examiner must administer a competency evaluation.

(b)

A trainee is eligible to take a competency evaluation if the trainee has successfully completed the training portion of a NATCEP, as determined by the program director, or is eligible under §94.11 of this chapter (relating to Waiver, Reciprocity, and Exemption Requirements).

(c)

If a trainee cannot take a competency evaluation at the location where the trainee received training, the trainee may take a competency evaluation at another approved NATCEP that offers the competency evaluation and accepts the trainee for a competency evaluation.

(d)

An eligible trainee who does not take a competency evaluation at the location where the trainee received training must obtain from the program director a signed competency evaluation application and a certificate or letter of completion of training. The trainee must arrange with another approved NATCEP to take the competency evaluation and must follow the instructions on the competency evaluation application.

(e)

A NATCEP must:

(1)

provide a facility where a trainee may perform the skills demonstration and a location where a trainee may take the written or oral examination;

(2)

offer a competency evaluation to its own trainees promptly after successful completion of the training portion of a NATCEP;

(3)

administer a competency evaluation to other eligible trainees the NATCEP has accepted for the competency evaluation;

take a competency evaluation within 24 months after completing the training portion of a NATCEP;

(2)

verify the arrangements for competency evaluations;

(3)

complete a competency evaluation application and submit the application in accordance with application instructions;

(4)

request another competency evaluation if the trainee fails a competency evaluation; and

(5)

meet any other procedural requirements specified by DADS or its designated skills examiner.

(g)

A competency evaluation must consist of:

(1)

a skills demonstration that requires the trainee to demonstrate five randomly selected skills drawn from a pool of skills that are generally performed by nurse aides, including all personal care skills listed in the curriculum; and

(2)

a written or oral examination, which includes 60 scored multiple choice questions selected from a pool of test items that address each course requirement in the curriculum. Written examination questions must be printed in a test booklet with a separate answer sheet. An oral examination must be a recorded presentation read from a prepared text in a neutral manner that includes questions to test reading comprehension.

(h)

A trainee with a disability, including a trainee with dyslexia as defined in Texas Education Code §51.970 (relating to Instructional Material for Blind and Visually Impaired Students and Students with Dyslexia), may request a reasonable accommodation for the competency evaluation under the Americans with Disabilities Act.

(i)

To successfully complete a NATCEP, a trainee must pass:

(1)

the skills demonstration, as determined by DADS; and

(2)

the written or oral examination, as determined by DADS.

(j)

A trainee who fails the skills demonstration or the written or oral examination may retake the competency evaluation twice.

(1)

A trainee must be advised of the areas of the competency evaluation that the trainee did not pass.

(2)

If a trainee fails a competency evaluation three times, the trainee must complete the training portion of a NATCEP before taking a competency evaluation again.

(k)

DADS informs a trainee before taking a competency evaluation that DADS records successful completion of the competency evaluation on the NAR.

(l)

DADS records successful completion of the competency evaluation on the NAR within 30 days after the date the trainee passes the competency evaluation.

(m)

A facility must not offer or serve as a competency evaluation site if the facility is prohibited from offering a NATCEP under the provisions of §94.3(e) of this chapter (relating to Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements).

(n)

A facility must not charge a nurse aide for any portion of a competency evaluation if the nurse aide is employed by or has received an offer of employment from a facility on the date the nurse aide takes the competency evaluation.

(o)

DADS reimburses a nurse aide for a portion of the costs incurred by the nurse aide to take a competency evaluation if the nurse aide is employed by or has received an offer of employment from a facility within 12 months after taking the competency evaluation.

§94.7 Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)

(a)

A NATCEP must apply to have its approval renewed every two years. DADS sends a notice of renewal to a NATCEP at least 60 days before the expiration date of an approval.

(b)

A NATCEP must submit a NATCEP application at least 30 days before the expiration date of an approval. If a NATCEP does not file an application to renew an approval at least 30 days before the expiration of the approval, the approval expires.

(c)

DADS uses the results of an on-site visit to determine NATCEP compliance with the Act and this chapter and to decide whether to renew the approval of a NATCEP.

(d)

DADS may conduct an on-site review of a NATCEP at any reasonable time.

(e)

DADS provides written notification to a NATCEP of deficiencies found during an on-site review.

(1)

If a NATCEP receives a notification of deficiencies from DADS, the NATCEP must submit a written response to DADS, which must include a plan of correction (POC) to correct all deficiencies.

(2)

DADS may direct a NATCEP to comply with the requirements of the Act and this chapter.

(3)

DADS may not renew the approval of a NATCEP that does not meet the requirements of the Act and this chapter by failing to provide an adequate POC.

(f)

A NATCEP approved by DADS may provide in-service education to a nurse aide that is necessary to have a listing on the NAR renewed.

(g)

A NATCEP must receive approval or an exemption under Texas Education Code Chapter 132 (relating to Career Schools and Colleges).

§94.8 Withdrawal of Approval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)

(a)

DADS immediately withdraws approval of a facility-based NATCEP if the facility where the NATCEP is offered has:

(1)

been granted a waiver concerning the services of an RN under §1819(b)(4)(C)(ii)(II) or §1919(b)(4)(C)(i)-(ii) of the Act;

(2)

been subject to an extended (or partially extended) survey under §1819(g)(2)(B)(i) or §1919(g)(2)(B)(i) of the Act;

(3)

been assessed a civil money penalty of not less than $5,000 as described in §1819(h)(2)(B)(ii) or §1919(h)(2)(A)(ii) of the Act;

(4)

been subject to denial of payment under Title XVIII or Title XIX of the Act;

(5)

operated under state-appointed or federally appointed temporary management to oversee the operation of the facility under §1819(h) or §1919(h) of the Act;

(6)

had its participation agreement terminated under §1819(h)(4) or §1919(h)(1)(B)(i) of the Social Security Act;

(7)

pursuant to state action, closed or had its residents transferred under §1919(h)(2); or

(8)

refused to permit unannounced visits by DADS.

(b)

DADS withdraws approval of a NATCEP if the NATCEP does not comply with §94.3 of this chapter (relating to Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements).

(c)

If DADS withdraws approval of a NATCEP for failure to comply with §94.3 of this chapter, DADS does not approve the NATCEP for at least two years after the date the approval was withdrawn.

(d)

If DADS proposes to withdraw approval of a NATCEP based on subsection (a) of this section, DADS notifies the NATCEP by certified mail of the facts or conduct alleged to warrant the withdrawal. DADS mails the notice to the facility’s last known address as shown in DADS records.

(e)

A dually certified facility that offers a NATCEP may request a hearing to challenge the findings of noncompliance that led to the withdrawal of approval of the NATCEP, but not the withdrawal of approval of the NATCEP itself, in accordance with 42 Code of Federal Regulations (CFR), Part 498.

(f)

A facility that offers a NATCEP and that participates only in Medicaid may request a hearing to challenge the findings of noncompliance that led to the withdrawal of approval of the NATCEP, but not the withdrawal of approval of the NATCEP itself. A hearing is governed by 1 Texas Administrative Code (TAC) Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act), except the facility must request the hearing within 60 days after receipt of the notice described in subsection (d) of this section, as allowed by 42 CFR §431.153.

(g)

A facility may request a hearing under subsection (e) or (f) of this section, but not both.

(h)

If the finding of noncompliance that led to the denial of approval of the NATCEP by DADS is overturned, DADS rescinds the denial of approval of the NATCEP.

(i)

If DADS proposes to withdraw approval of a NATCEP based on §94.3 of this chapter or §94.7 of this chapter (relating to Review and Reapproval of a Nurse Aide Training and Competency Evaluation Program (NATCEP)), the NATCEP may request a hearing to challenge the withdrawal. A hearing is governed by 1 TAC, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedures Act), and Chapter 91 of this title (relating to Hearings Under the Administrative Procedures Act). 1 TAC §357.484 (relating to Request for a Hearing) requires a hearing to be requested in writing within 15 days after the date the notice is received by the applicant. If a NATCEP does not make a timely request for a hearing, the applicant has waived the opportunity for a hearing and DADS may withdraw the approval.

(j)

A trainee who started a NATCEP before DADS sent notice that it was withdrawing approval of the NATCEP may complete the NATCEP.

§94.9 Nurse Aide Registry and Renewal

(a)

To be listed on the NAR as having active status, a nurse aide must successfully complete a NATCEP, as described in §94.6(i) of this chapter (relating to Competency Evaluation Requirements).

(b)

DADS does not charge a fee to list a nurse aide on the NAR or to renew the nurse aide's listing of active status on the NAR.

(c)

A nurse aide listed on the NAR must inform DADS of the nurse aide's current address and telephone number.

(d)

A listing of active status on the NAR expires 24 months after the nurse aide is listed on the NAR or 24 months after the last date of verified employment as a nurse aide, whichever is earlier. To renew active status on the NAR, the following requirements must be met:

(1)

A facility must submit a DADS Employment Verification form to DADS that documents that the nurse aide has performed paid nursing or nursing-related services at the facility during the preceding year.

(2)

A nurse aide must submit a DADS Employment Verification form to DADS to document that the nurse aide has performed paid nursing or nursing-related services, if documentation is not submitted in accordance with paragraph (1) of this subsection by the facility or facilities where the nurse aide was employed.

(3)

Effective September 1, 2013, a nurse aide must complete at least 24 hours of in-service education every two years that includes training in geriatrics and the care of residents with a dementia disorder, including Alzheimer's disease, to renew a listing of active status on the NAR.

(4)

In-service education for renewal of a listing on the NAR must be completed in a facility or an approved NATCEP.

§94.10 Expiration of Active Status

(a)

A nurse aide’s status on the NAR is changed to expired if:

(1)

the nurse aide has not performed nursing-related services or acted as a nurse aide for monetary compensation for 24 consecutive months; or

(2)

effective September 1, 2013, the nurse aide has not completed 24 hours of in-service education during the preceding two years.

(b)

A nurse aid whose status is listed as expired must complete a NATCEP or a competency evaluation to be listed on the NAR with active status.

§94.11 Waiver, Reciprocity, and Exemption Requirements

(a)

DADS may waive the requirement for a nurse aide to take the NATCEP specified in §94.3 of this chapter (relating to Nurse Aide Training and Competency Evaluation Program (NATCEP) Requirements) and place a nurse aide on the NAR on active status if the nurse aide:

(1)

submits proof of completing a nurse aide training course of at least 100 hours duration before July 1, 1989;

(2)

submits a DADS Employment Verification form to DADS to document that the nurse aide performed nursing or nursing-related services for monetary compensation at least once every two years since July 1, 1989;

(3)

is not listed as unemployable on the EMR;

(4)

has not been convicted of a criminal offense listed in Texas Health and Safety Code (THSC), §250.006(a), or convicted of a criminal offense listed in THSC, §250.006(b) within the preceding five years; and

(5)

completes the DADS Waiver of Nurse Aide Training and Competency Evaluation Program form.

(b)

DADS places a nurse aide on the NAR by reciprocity if:

(1)

the nurse aide is listed as having active status on another state's registry of nurse aides;

(2)

the other state's registry of nurse aides is in compliance with the Act;

(3)

the nurse aide is not listed as unemployable on the EMR;

(4)

the nurse aide has not been convicted of a criminal offense listed in THSC, §250.006(a), or convicted of a criminal offense listed in THSC, §250.006(b) within the preceding five years; and

(5)

the nurse aide completes a DADS Reciprocity form and submits it to DADS.

(c)

A person is eligible to take a competency evaluation with an exemption from the nurse aide training specified in §94.3 of this chapter if the individual:

(1)

meets one of the following requirements for eligibility:

(A)

is seeking renewal under §94.9 of this chapter (relating to Nurse Aide Registry and Renewal);

(B)

has successfully completed at least 100 hours of training at a NATCEP in another state within the preceding 24 months but has not taken the competency evaluation or been placed on an NAR in another state;

(C)

has successfully completed at least 100 hours of military training, equivalent to civilian nurse aide training, on or after July 1, 1989;

(D)

has successfully completed an RN or LVN program at an accredited school of nursing in the United States within the preceding 24 months, and:

(i)

is not licensed as an RN or LVN in the state of Texas; and

(ii)

has not held a license as an RN or LVN in another state that has been revoked; or

(E)

is enrolled or has been enrolled within the preceding 24 months in an accredited school of nursing in the United States and demonstrates competency in providing basic nursing skills in accordance with the school's curriculum;

(2)

is not listed as unemployable on the EMR;

(3)

has not been convicted of a criminal offense listed in THSC, §250.006(a), or convicted of a criminal offense listed in THSC, §250.006(b) within the preceding five years;

(4)

submits documentation to verify at least one of the requirements in subsection (c)(1) of this section;

(5)

arranges for a facility or NATCEP to serve as a competency evaluation site; and

(6)

before taking the competency evaluation, presents to the skills examiner an original letter from DADS authorizing the person to take the competency evaluation.

(d)

In accordance with Texas Occupations Code §55.004, the spouse of a person serving on active duty as a member of the United States armed forces may be listed on the NAR as having active status if:

(1)

the spouse was listed on the NAR as having active status during the preceding five years;

(2)

the spouse's listing on the NAR expired while the spouse lived in another state for at least six months;

(3)

the spouse is not listed as unemployable on the EMR;

(4)

the spouse is not listed as having revoked or suspended status on the NAR;

(5)

the spouse has not been convicted or a criminal offense listed in THSC, §250.006(a), or a criminal offense listed in THSC, §250.006(b) within the preceding five years; and

(6)

there has not been a period of 24 consecutive months in which the spouse did not provide nursing or nursing-related services for monetary compensation.

§94.12 Findings and Inquiries

(a)

DADS reviews and investigates allegations of abuse, neglect, or misappropriation of resident property by a nurse aide employed in a facility. If DADS finds that a nurse aide committed an act of abuse, neglect, or misappropriation of resident property, before entry of the finding on the NAR, DADS provides the nurse aide an opportunity to dispute the finding through an informal review (IR) and a hearing as described in this section.

(b)

If DADS finds that a nurse aide committed an act of abuse, neglect or misappropriation of resident property, DADS sends the nurse aide a written notice regarding the finding. The notice includes:

(1)

a summary of the findings and facts on which the findings are based;

(2)

a statement informing the nurse aide of the right to an IR to dispute DADS findings;

(3)

a statement informing the nurse aide that a request for an IR must be made within 10 days after the date the nurse aide receives the written notice; and

(4)

the address and contact information for the local DADS regional office, where the nurse aide must submit a request for an IR.

(c)

If a nurse aide requests an IR, DADS sets a date to allow the nurse aide to dispute the findings of the investigation of abuse, neglect, or misappropriation of resident property. The nurse aide may dispute the findings by providing testimony, in person or by telephone, to an impartial DADS staff person at the local DADS regional office.

(1)

If the staff person does not uphold the findings, DADS notifies the nurse aide of the results of the IR and closes the investigation. DADS does not record information related to the investigation in the NAR.

(2)

If the staff person upholds the findings, DADS notifies the nurse aide of the results of the IR. The nurse aide may request a hearing in accordance with subsection (d) of this section.

(3)

If the nurse aide does not request an IR, or fails to appear for a requested IR, DADS upholds the findings. The nurse aide may request a hearing in accordance with subsection (d) of this section.

(d)

A nurse aide may request a hearing after receipt of DADS notice of the results of an IR described in subsection (c)(2) of this section. 1 Texas Administrative Code (TAC) Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act), and Chapter 91 of this title (relating to Hearings Under the Administrative Procedure Act) govern the hearing, except that a nurse aide must request a formal hearing within 30 days after receipt of DADS notice in compliance with 42 CFR §488.335. If the nurse aide fails to request a hearing, the nurse aide waives the opportunity for a hearing and DADS enters the finding of abuse, neglect, or misappropriation of resident property, as appropriate, on the NAR.

(e)

If DADS receives an allegation that a nurse aide, who has a medication aide permit under Chapter 95 of this title (relating to Medication Aides--Program Requirements), committed an act of abuse, neglect, or misappropriation of resident property, DADS investigates the allegation under this section regarding the nurse aide practice and under Chapter 95 to determine if the allegation violates the medication aide practice. The investigations run concurrently. If after the investigations, the nurse aide requests hearings on the findings under the nurse aide practice and the medication aide practice, only one hearing, conducted in accordance with subsection (d) of this section, is available to the nurse aide.

(f)

If DADS finds that a nurse aide committed an act of abuse, neglect, or misappropriation of resident property, DADS reports the finding to:

(1)

the NAR;

(2)

the nurse aide;

(3)

the administrator of the facility in which the act occurred; and

(4)

the administrator of the facility that employs the nurse aide, if different from the facility in which the act occurred.

(g)

The NAR must include the findings involving a nurse aide listed on the NAR, as well as any brief statement of the nurse aide disputing the findings.

(h)

The information on the NAR is available to the public.

(i)

If an inquiry is made about a nurse aide's status on the NAR, DADS must:

(1)

verify if the nurse aide is listed on the NAR;

(2)

disclose information concerning a finding of abuse, neglect, or misappropriation of resident property involving the nurse aide; and

(3)

disclose any statement by the nurse aide related to the finding.

(j)

If a nurse aide works in a capacity other than a nurse aide in a facility and is listed as unemployable in the EMR, DADS changes the status of the nurse aide's listing on the NAR to revoked or suspended. The due process available to the nurse aide before placement on the EMR satisfies the due process required before DADS changes the nurse aide's status on the NAR.

(k)

If DADS lists a nurse aide's status on the NAR as suspended or revoked because of a single finding of neglect, the nurse aide may request that DADS remove the finding after the finding has been listed on the NAR for one year. To request removal of the finding, the nurse aide must submit a DADS Petition for Removal of Neglect Finding to DADS in accordance with the petition's instructions.